How did our neighboring state 90 minutes west achieve marriage equality? Tamara Packard reviews their Supreme Court’s unanimous opinion.
Real estate just got hot in Iowa! Wisconsin same-sex couples wishing to relocate to where they may legally marry might consider hopping the border, saying “I do,” and settling down. On April 3, 2009 the Iowa Supreme Court unanimously ruled in Kerrigan v. Commissioner of Public Health that the Iowa Constitution’s guarantee of equal protection under the laws entitles same-sex couples the right to civil marriage. By the time you read this, gay and lesbian couples will likely be exercising that right, a mere 90 minutes from Madison. How did this happen, and what does it mean for Wisconsin same-sex couples?
In 1998, the Iowa legislature amended Iowa’s marriage statutes to define marriage as a union between only a man and a woman. Unlike Wisconsin, however, Iowa’s legislature left intact its Constitution, including its promise of equal treatment under the law for all citizens. Six Iowa same-sex couples petitioned the Iowa courts, asserting that the 1998 statute violated the Iowa Constitution’s centuries old guarantee of equal protection.
The Iowa Supreme Court agreed and issued a unanimous decision written for regular people, not just lawyers, to read and understand. Most importantly, the Court’s opinion elegantly and convincingly rejects the usual arguments we often hear from our opposition. It is such a pleasure to read this opinion! I urge you to do so (it is available on the internet, including at www.ourlivesmadison.com). Here is a small taste of what you will find:
Addressing the oft-heard claim that marriage bans don’t discriminate against gays and lesbians “because they are allowed to marry, so long as they marry someone of the opposite sex,” the Iowa Supreme Court said this:
It is true the marriage statute does not expressly prohibit gay and lesbian persons from marrying; it does, however, require that if they marry, it must be to someone of the opposite sex. Viewed in the complete context of marriage, including intimacy, civil marriage with a person of the opposite sex is as unappealing to a gay or lesbian person as civil marriage with a person of the same sex is to a heterosexual. Thus, the right of a gay or lesbian person under the marriage statute to enter into a civil marriage only with a person of the opposite sex is no right at all.
In order to prove that the 1998 statute was not merely borne of prejudice and stereotype against gays and lesbians (and therefore in violation of Iowa’s equal protection clause), the state had to show that excluding gay and lesbian people from civil marriage is substantially related to an important government objective. One claim made by the state was that limiting marriage to heterosexual couples was substantially related to the important government objective of ensuring optimal rearing of children. In other words, denying us the right to marry would somehow be good for kids. The Court rejected that claim, and made this beautiful observation:
If the statute was truly about the best interest of children, some benefit to children derived from the ban on same-sex civil marriage would be observable. Yet, the germane analysis does not show how the best interests of children of gay and lesbian parents, who are denied an environment supported by the benefits of marriage under the statute, are served by the ban.
The Iowa Supreme Court deserves special praise for addressing the pink elephant in the room: religious opposition to same-sex civil marriage. The state was not foolish enough to advance this as a reason for the statute, but the Court recognized that much citizen opposition to marriage equality is fueled by religious sentiment. The Court also recognized, however, that many other equally religious Iowans support marriage for same-sex couples. The Court explained that neither religious perspective had a place in its resolution of the dispute: “Our constitution does not permit any branch of government to resolve these types of religious debates and entrusts to courts the task of ensuring government avoids them.” It explained that constitutional principles, not religious principles, must resolve the debate:
In the final analysis, we give respect to the views of all Iowans on the issue of same-sex marriage—religious or otherwise—by giving respect to our constitutional principles. These principles require that the state recognize both opposite-sex and same-sex marriage. Religious doctrine and views contrary to this principle of law are unaffected, and people can continue to associate with the religion that best reflects their views. … civil marriage will now take on a new meaning that reflects a more complete understanding of equal protection of the law.
For those of us staying in Wisconsin*, civil marriage equality in Iowa means little more than it does in California, Spain, or Sweden: big picture progress, but no concrete changes. While Iowa has no residency requirement (although it does have a 3-day waiting period to obtain a marriage license), Wisconsin’s government will not recognize a same-sex marriage formed in Iowa. And, in theory, Wisconsinites who to go Iowa, marry, and then return home could perhaps be charged with a misdemeanor for violating Wisconsin’s “marriage evasion” statute. This is a law that, especially now, should be repealed. Those in Wisconsin who oppose marriage equality are well-protected so long as Wisconsin’s anti-marriage amendment remains in place. We should be able to travel in Massachusetts, Vermont, Connecticut and Iowa with the legal protections those states would provide with an Iowa marriage license without fear of doing time at home.
*Editor’s Note: This article was written in 2009. Since then, marriage for LGBT people has become legal here in Wisconsin and several other states.